Advancing a Free Society

South Africa’s Orwellian Constitution

Wednesday, April 4, 2012

The U.S. Constitution is, as Justice Ruth Bader Ginsburg has recently reminded us, “a rather old constitution.” In her parlance, old does not mean venerable or worthy of imitation. Speaking on Egypt’s Al Hayat TV, she advised constitution-drafting Egyptians to look to newer models; she singled out the Constitution of South Africa (1996), Canada’s Charter of Rights and Freedoms (1982), and the European Convention on Human Rights (1950).

Admittedly, the oath she swore to “bear true faith and allegiance” to the U.S. Constitution does not require Justice Ginsburg to recommend its adoption by all and sundry. There might be good reasons—rooted in history and circumstance—why a constitution suited to one people is not suited to another. Laws ought to be in accord with the general spirit of a nation, as Montesquieu, the great theorist of modern constitutionalism, argued. This was not the Justice’s point, however. She thinks there are blueprints worthy of export, just not the one ratified by Americans in 1787.

Her opinion is the fashionable one. A forthcoming article in the New York University Law Review confirms the declining influence of the U.S. Constitution. The reason?—“it is increasingly out of sync with an evolving global consensus on issues of human rights,” authors David S. Law and Mila Versteeg argue. This focus on rights (the more, the better) is evident in the documents Ginsburg endorsed. Two of them aren’t even constitutions in the usual sense of a plan of government. Instead, one is a supranational convention about human rights; another is a national charter of rights (added to the Canadian Constitution of 1867 when Canada, in 1982, finally became fully independent of the British Parliament).

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